Forwarding Organizational Documents to New LLC

Vol. 2,No. 3

Jean L. Batman

Jean L. Batman founded Legal Venture Counsel, Inc. in 2004 to provide outside general counsel services to investors, entrepreneurs, and small businesses. As outside general counsel to a variety of companies and individuals, Ms. Batman provides business and financial legal services to privately-held entities operating in a broad range of industries including real estate development, financial and professional services, manufacturing, software, retail, biotechnology/specialty pharmaceutical, and high technology. She has written and spoken on a number of topics of interest to the business community, such as choice of entity, venture financing, and finding practical solutions to common legal problems.

From Letters for Small Business Lawyers

{Date}

{Name}

{Company Name}

{Address}

{City, State, Zip Code}

RE: Organization of COMPANY LLC

Dear {Salutation}:

Enclosed please find an endorsed filed copy of the Articles of Organization for COMPANY LLC, which was formed as of DATE. Also attached please find a copy of the Instructions for Form FTB 3522 and Limited Liability Tax Voucher for the payment of the company’s annual $800 tax to the California Franchise Tax Board, which you may wish to provide to the company’s CPA. Pursuant to our discussions, I will prepare a draft “no frills” Operating Agreement (one member, one manager, no officers, no bylaws) and forward it to you shortly for your review.

In the meantime, please complete the following:

1. Obtain a Federal Employer Identification Number (FEIN) for the new entity, which you can do online by completing and submitting a Form SS-4 application. The start page is at http://www.irs.gov/businesses/small/article/0,,id=102767,00.html. Click on the “Apply Online Now” link on that page and follow the instructions. If you get stuck, give me a call. Once obtained, please send me a copy of your completed Form SS-4 and the assigned FEIN for my files. Tip: Don’t use any punctuation on the application.

2. Complete a Form LLC-12 Statement of Information for submission to the secretary of state no later than DATE to maintain the company’s good standing. The form is available online at the following link: http://www.ss.ca.gov/business/llc/forms/llc-12.pdf. The company’s Secretary of State File Number is ____________. There is a $20.00 filing fee. If you have any questions about completing the form, please do not hesitate to call me.

With the enclosed endorsed filed Articles of Organization and a FEIN, your bank should allow you to open a bank account for the new entity.

The remainder of this letter is for reference purposes and will provide you with some general information regarding the operation of a limited liability company and the role of members, as well as of managers and officers, if any, in a limited liability company. This e-mail is intended to call to your attention some of the basic legal requirements to which limited liability companies are subject and which may require your attention. Please consider the matters described herein with care and keep a copy of this e-mail with your limited liability company records for easy reference, as failure to observe some of the requirements may compromise the limited liability company or result in personal liability to its members, managers, and/or officers.

I. BASIC STRUCTURE OF AN LLC

The owners of the LLC are the “members” as defined in the California Limited Liability Company Act (the Act). The LLC may be managed by its members, or it may be managed by one or more managers elected by the members (the managers). The governing agreement for the LLC is called an “Operating Agreement.” In a member-managed LLC, each member has the power to bind the LLC. However, in a manager-managed LLC, no member has the power to bind the LLC (just as no shareholder of a corporation can bind the corporation); only a manager or authorized officer of the LLC can bind the manager-managed LLC.

Management duties include decisions about key policies, LLC transactions, and establishment of guidelines within which the business of the LLC will be conducted. The managers can hire officers and employees to perform the LLC’s day-to-day business.

The principal distinguishing feature of an LLC is the limitation of liability that the members of the LLC enjoy (like a corporation), as well as the pass-through income tax treatment enjoyed by the LLC and members (like a partnership). As long as the LLC is properly formed and in existence, and is properly operated, the members will not be personally liable for the LLC’s debts, obligations, and liabilities. In other words, if the LLC’s debts exceed the value of the LLC’s assets, the LLC’s creditors should not be entitled to seek repayment from the members’ personal assets.

Of course, a personal guarantee of an LLC obligation by an LLC member would give rise to personal liability of that member to the extent specified in the guarantee (as it would for a shareholder in a corporation). Failure by a member to remit employee withholding taxes can provide another basis for personal liability of a member (as it would for a shareholder in a corporation). Liability based on the personal tortious behavior of a member would of course provide the basis for personal tort liability of that member (as it would for a shareholder in a corporation). But generally the LLC liability shield, like the corporation’s liability shield, should protect individual members from LLC debts, obligations, and liabilities.

The following is a brief description of the roles of the major players in an LLC—the members and the managers. Although the following is written as if members and managers are separate persons, the same individuals could serve as both members and managers.

A. Members

The members own the LLC and provide the capital with which the LLC commences its business. In a member-managed LLC, members by definition manage the business of the LLC. In a manager-managed LLC, members as a group often do not take an active role in running the business. Normally, one or two members will be intimately involved in day-to-day operations of the LLC, and other members will be passive, non-active investors. Beyond electing the managers and voting on certain key events in the LLC’s life, the members of a manager-managed LLC entrust its management to the managers (much like the shareholders of a corporation entrust its management to the directors and officers of the corporation). Matters requiring member votes are discussed in “Member Votes” below.

B. Managers

Managers are elected by the members. At the outset, managers can simply be specified in the operating agreement, which is of course approved and signed by all members. Thereafter, if the operating agreement so permits, members can hold annual or other regularly scheduled meetings to elect managers. Managers manage the business and affairs of the LLC and exercise the LLC’s powers. Managers can either perform these responsibilities themselves or delegate their performance to officers and employees under the direction of the managers.

In performing these responsibilities, the Act imposes on managers the same fiduciary duty with respect to the LLC and its members that a general partner owes to a general partnership and the other partners of that partnership. It is permissible to modify and otherwise refine the fiduciary duty of the manager in the operating agreement. Indeed, it is advisable to do so. Typically, the operating agreement will specify fiduciary duties, such as the “duty of loyalty” and the “duty of care,” for LLC managers.

The duty of loyalty dictates that a manager must act in good faith and must not allow personal interests to prevail over interests of the LLC and the LLC’s members. A standard example that raises these issues is a proposal that the LLC enter into a transaction that either benefits a manager or involves the manager in a conflict of interest with the LLC or its members. Such transactions are often called “self-dealing” transactions. They are not prohibited, but such transactions must be predicated upon (i) full disclosure, (ii) proper approval from disinterested managers and members, and (iii) fairness to the LLC and its members.

The duty of care requires a manager to be diligent and prudent in managing the LLC’s affairs. This is sometimes referred to in corporate law as the “business judgment” rule. If a manager makes a decision, conscientiously and without fraud or conflict of interest, such manager will not be second-guessed by courts based on how that decision happens to work out for the LLC. A manager is not held liable merely because a carefully made decision turns out badly.

C. Officers

Like a corporation, the LLC members and managers can appoint officers for the LLC who serve at the pleasure of the managers, subject to contracts of employment (if any) such officers may have with the LLC. The officers perform the bulk of the day-to-day operation of the LLC’s business. Normally, an LLC will want at least a general manager (or president), a chief financial officer, and a secretary. More than one of these offices can be held by the same individual. An LLC may have additional officers as well. These additional officers are appointed by either the general manager or another officer if such officer has been delegated authority to make such appointments.

The following is a brief summary of the standard duties of the following officers. All of these could be modified by the managers.

1. General Manager or President. The General Manager is the Chief Executive Officer and general manager of the LLC unless the LLC has a Chairman of the Board and has designated the Chairman as Chief Executive Officer. The General Manager has general supervision, direction, and control over the LLC’s business and its officers. The General Manager can also be called the President of the LLC.

2. Chief Financial Officer. The Chief Financial Officer keeps the books and records of account of the properties and business transactions of the LLC. These duties include depositing corporate funds and other valuables in the name of the LLC and disbursing funds as directed by the managers. The Chief Financial Officer also typically serves as the “tax matters partner” for the LLC as required under the Internal Revenue Code.

3. Secretary. The Secretary of an LLC keeps the LLC’s Articles of Organization, Operating Agreement, record of members’ addresses and holdings in the LLC, and written minutes (if any) of the proceedings of the LLC’s members and managers. The Secretary usually has the duty of giving notices to members and managers of members’ and managers’ meetings.

II. OBSERVANCE OF “CORPORATE FORMALITIES”—NOT REQUIRED

Unlike a corporation, the observance of “corporate formalities” is not an important part of maintaining the shield from liability and other protections and advantages offered by the LLC form of doing business. The term “corporate formalities” normally means holding annual (or other regularly scheduled) meetings of the members and managers, providing written notice in advance of such meetings, preparing detailed minutes of matters decided upon at such meetings, and so forth. The Act specifically states that failure to observe such corporate formalities “shall not be considered a factor tending to establish that the members have personal liability for any debt, obligation, or liability of the” LLC where the Articles of Organization or Operating Agreement of the LLC do not specifically require such formalities to be observed.

This does not mean that LLC members are completely free to ignore the separate legal identity of the LLC. For example, members must always keep in mind that the LLC assets and funds are in the name of and owned by the LLC, not by the LLC’s members. Separation of LLC assets from personal assets of the members is very important. See “Separation of LLC and Personal Assets” below.

III. MEMBER VOTES; MANAGER ACTIONS

A. Member Votes. Certain fundamental changes in the life of an LLC, such as a merger or liquidation, require a vote by the members. These fundamental changes include amendment of the Articles of Organization, amendment of the Operating Agreement, merger or consolidation of the LC, and winding up and dissolution of the LLC.

B. Manager Action. Matters of general operating policy should be considered and authorized by the general manager or managers of the LLC. Although there is no statutory requirement with respect to how frequently the managers should act, it is advisable that they meet at least quarterly. In addition, a specially convened meeting of the managers may be called if action is required before the next regular meeting. Action by the managers may also be taken by unanimous written consent. Although it is likely that most manager actions will be taken by unanimous written consent without a meeting, it may prove useful to schedule regular managers’ meetings to address significant matters on a quarterly or at least annual basis. Manager meetings can be held either in person or by conference telephone as long as all managers in attendance can hear each other simultaneously.

Matters appropriate for manager action that can be immediately approved by written consent or that might arise and be accumulated, pending approval by the managers, include the following:

1. Appointment of officers, setting of salaries, and declaration of bonuses (at least annually, typically at a meeting of the managers immediately following the annual meeting of members).

2. Appointment of manager committees, if any.

3. Opening of LLC bank accounts and the designation and change of LLC managers and officers authorized as signatories.

4. LLC borrowing and delivery of collateral in connection with such borrowing.

5. Consummation of material contracts for the purchase or lease of significant assets or services or the disposition of LLC assets or for the rendition of services outside the ordinary course of the business of the LLC.

6. Policy decisions with respect to the construction of material assets or the investment of material amounts in research and development projects.

7. The adoption of pension, profit-sharing, bonus, and other employee benefit plans.

8. The repurchase of LLC interests.

9. Amendment of LLC bylaws (if any).

10. Review of financial statements of the LLC.

11. Appointment of auditors, if any.

12. Any action that requires a member vote.

13. The issuance and sale by the LLC of additional interests in the LLC.

In the case of any such actions, the secretary of the LLC should prepare minutes of the meeting at which such actions were approved or prepare the form of written consent evidencing any such manager or member actions.

IV. SEPARATION OF LLC AND PERSONAL ASSETS

It is important for any company to respect the difference between its bank accounts, property, equipment, and other assets and personal assets owned by the company’s owners. An LLC, like a corporation or other legal “person,” is a separate legal entity with assets that are owned by the LLC. Any attempt by an LLC member to dispose of or use LLC property would be no more proper than an attempt by that member to dispose of or use another member’s personal property. Members must respect the fact that the LLC’s assets are the property of the LLC, not the members. Similarly, an LLC member should not mingle his or her personal assets with the company assets of the LLC.

The Company’s books, records, and financial statements should be maintained clearly to reflect the separation of the Company’s assets from the personal assets of the members. The Company must conduct business in its own name (not in the individual name of any manager or member). All letterhead, business card, bills, checks, invoices, and other Company forms should show the Company’s full legal name (and fictitious business name, if any), and the Company’s current address, telephone number, and fax number.

As a statement of sound business practice, the observations made about separation of personal assets from company assets are fairly obvious. There is an additional, less obvious reason to follow those rules.

Creation of an LLC shield from liability for LLC members inevitably gives rise to attempts to pierce that shield by creditors of the LLC. This has long been the case for the liability shield of corporations. As long as there have been corporations, there have been attempts to “pierce the corporate veil.” Published cases in which such attempts have been successful usually involve a recitation by the court of a dozen or so factors in support of the court’s ruling that the shareholders of the corporation should be held personally liable for the debts, obligations, or other liabilities of the corporation. At the top of this list of factors are (i) failure by the shareholders to respect the corporation’s separate identity (by combining corporate and personal assets) and (ii) some other form of misconduct by the shareholders with respect to the corporation.

Although the failure of an LLC to respect corporate formalities generally cannot be considered a factor “tending to establish that the members have personal liability” for any LLC debt, obligation, or liability (see “II. Observance of Corporate Formalities—Not Required” above), this is not to say that LLC members can ignore the many years of corporate law developments in this area. LLC members and managers are well advised to bear in mind the foregoing observations about piercing the corporate veil.

V. ADEQUATE CAPITALIZATION

The Company should be adequately capitalized to carry on the Company’s business activities. This is an obvious statement of sound business practice. However, a less obvious reason to ensure that the Company is and remains adequately capitalized is to prevent a piercing of the “corporate veil,” as discussed above. One of the factors considered by courts that have ruled that creditors of a corporation should be allowed to hold the shareholders personally liable for debts and obligations of the corporation is that the corporation was not adequately capitalized. Therefore, adequate capitalization is an additional, very important factor relating to the shield from personal liability for the members of an LLC.

VI. OTHER POST-FORMATION MATTERS

Although it is not intended to be exhaustive, the following checklist summarizes some of the legal requirements applicable to a new LLC. Some of the requirements arise as a consequence of formation of the LLC; others apply to all new businesses regardless of the form of organization. Certain requirements are highly formal and technical; many must be satisfied within a specified time period. Care must be taken to comply with these matters as they arise because in many cases serious penalties can be assessed for noncompliance.

A. Local Business License. The LLC may be required to obtain a business license from the city in which it intends to operate.

B. Employer Identification Number. Every employer must obtain a federal employer identification number (FEIN), which will be used on federal tax returns and certain other documents.

C. Annual LLC Statement of Information. Each year, the LLC must submit a Form LLC-12, providing a current list of names and addresses of the LLC managers (and if there are no managers, of the members), the LLC chief executive officer, and the LLC agent for service of process.

D. Estimated Federal Income Tax. The LLC members will be required to pay estimated federal income tax in installments (like a general partner in a partnership). Your accountant should keep you current with this requirement.

E. State Minimum Annual Franchise Tax. Every LLC organized, registered, or doing business in the state of California is subject to an annual minimum franchise tax of $800.

F. State Graduated Gross Receipts Fee. In addition to the annual $800 franchise tax, LLC’s in California have also been subject to a graduated fee determined on the basis of the LLC’s total income. Your accountant should keep you current with this requirement.

G. Tax Returns. Both federal and state income tax returns must be filed on or before the 15th day of the fourth month following the beginning of the company’s taxable year. Your accountant should keep you current with this requirement.

H. Personal Property Taxes. If the LLC owns significant personal property, it may be required to file a property statement with the county assessor and may be subject to a personal property tax. Forms may be obtained from the county assessor.

I. Sales and Use Taxes. If the nature of the LLC’s business includes the sale at retail of tangible personal property (goods), then the LLC may be subject to sales and use taxes and would need to obtain a seller’s permit from the California State Board of Equalization.

J. Payroll Withholding.

1. Federal. The LLC will be required to withhold income tax and Social Security tax from taxable wages paid to its employees. Funds withheld must be deposited in certain depositories accompanied by a Federal Tax Deposit Form 8109. An “Employer’s Quarterly Federal Tax Return” (IRS Form 941) must then be filed before the end of the month following each calendar quarter. Any manager, officer, or other person obliged to withhold taxes may become personally liable for a 100% penalty if he fails to pay the withheld funds to the Internal Revenue Service.

2. California. The LLC will also be required to withhold California income tax from its employees’ taxable wages. Within 15 days after becoming subject to the personal income tax withholding requirements, the employer must register with the Department of Employment Development. A booklet titled Employer’s Tax Guide for the Withholding, Payment and Reporting of California Income Tax may be obtained from this department. K. Federal Unemployment Tax. The “Unemployment Tax Return” (IRS Form 940) must be filed and any balance due paid on or before January 31 of each year. Details may be found in IRS Circular E, the “Employer’s Tax Guide.”

L. California Unemployment Compensation Insurance. Registration with the California Department of Employment Development (EDD) can be accomplished at the same time that the LLC applies for a seller’s permit (if needed) from the Board of Equalization. Forms for returns are mailed automatically to all registered employers.

M. Workers’ Compensation. All employers must either be insured against workers’ compensation liability by an authorized insurer or must obtain a Certificate of Consent to Self-Insure from the manager of industrial relations. The required insurance may be obtained through the nearest local office of the State Compensation Insurance Fund or it may be placed with a licensed workers’ compensation private carrier.

VII. GENERAL

A. Signing on Behalf of the LLC

Whenever the LLC members, managers, or officers are signing agreements, documents, or correspondence on behalf of the LLC, care should be taken to include the LLC’s name in the signature block and to indicate the title of the signing person. An example of an appropriate signature block is included below.

[LLC name]

By: __________________________

Name: [name of individual]

Title: [Member, Manager, etc.]

Failure to do so may lead, in the context of litigation involving a signed document, to including the person who signed the document in the lawsuit in his or her individual capacity.

B. Bylaws

The Operating Agreement and Articles of Organization of the LLC are the authoritative source of advice on how to do certain things that will come up from time to time. For certain types of LLCs (normally those with a larger number of members), a form of bylaws similar to those applicable to a corporation may also be advisable or useful.

C. Official Documents

A number of small LLCs have found it useful to designate one of the officers, usually the secretary, to be the recipient of all “official” correspondence concerning the LLC and its relationships with the various government agencies with which it deals. This helps to avoid forgetting to submit certain of the regularly filed forms, such as the Annual Form LLC-12 (see item IV.C above), which are simple documents but can lead to trouble if they are not taken care of promptly.

I hope this has provided some useful guidance with respect to the process of running a business in LLC form. Please feel free to call me with any questions.